Jermaine SWABY, Petitioner-Appellant, v. PEOPLE of the State of New York, Respondent-Appellee, 613 F. App'x 48

SUMMARY ORDER Petitioner-Appellant Jermaine Swaby appeals the April 7, 2014, Judgment of the district court denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Swaby was convicted after a jury trial on May 21, 2002, in New York State Supreme Court, Kings County, of murder in the second degree for shooting Shane Reynolds in the head five times. He was sentenced principally to a term of imprisonment of twenty-five years to life.

At his trial, Swaby did not deny shooting Reynolds, but rather claimed that he acted in self-defense after Reynolds charged at and struggled with him outside a Brooklyn nightclub after the two, and others, had been involved in a fistfight in the club. Swaby unsuccessfully appealed his conviction. He then collaterally attacked his conviction pursuant to New York Criminal Procedure Law § 440.10, alleging that he received ineffective assistance of counsel because his trial attorney Michael C.

Harrison, inter alia, failed to consult with a forensic examiner, brought out on direct examination Swaby’s use of a knife in a prior robbery, and acted offensively and bizarrely throughout the trial. Following the trial court’s denial of the § 440.10 motion and the Second Department’s denial of leave to appeal, Swaby filed this petition for a writ of habeas corpus in the district court. A defendant’s claim for ineffective assistance of counsel is evaluated pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To establish ineffective assistance, a defendant must (1) show that counsel’s representation “fell below an objective standard of reasonableness,” and (2) “affirmatively prove prejudice” by showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 688, 693-94, 104 S.Ct. 2052.

The district court held that Harrison’s performance was deficient in failing to consult and possibly retain a forensic expert and in introducing evidence of Swaby’s prior robbery, and that the state court was unreasonable in concluding otherwise. See Swaby v. People of the State of N.Y., No. 06-CV-3845 (ENV), 2014 WL 1347204, at *13-16 (E.D.N.Y. Mar. 31, 2014). However, the district court determined that Swa-by did not suffer prejudice as a result of those deficiencies. Id.

The district court thus denied habeas relief, but issued a certificate of appealability limited to the issues of ineffectiveness with respect to introduction of the robbery evidence and failure to consult with a forensic expert. Swaby moved before this Court to expand the certificate of appealability. We granted that motion to allow Swaby to argue the cumulative effects of his trial counsel’s alleged errors. This Court reviews de novo the district court’s denial of a habeas petition pursuant to 28 U.S.C. § 2254. See Jones v. West, 555 F.3d 90, 95-96 (2d Cir.2009).

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we apply a highly deferential standard for evaluating the state court determination if the claim has been adjudicated on the merits by the state court, for the petitioner must show that the state court’s decision was contrary to or involved an unreasonable application of the standard established by Strickland, or was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(l)-(2); Harrington v. Richter, 562 U.S. 86, 100-01, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

A state court’s determination that a claim lacks merit precludes federal habeas relief so long as “fairminded jurists could disagree” on the correctness of the state court’s decision. Richter, 562 U.S. at 101, 131 S.Ct. 770 (internal quotation marks omitted). Where the habeas claim is ineffective assistance of counsel, the standard for evaluating the state court’s rejection of the claim is “doubly” deferential, for “[e]ven under de novo review, the standard for judging counsel’s representation is a most deferential one.” Id. at 105, 131 S.Ct. 770 (internal quotation marks omitted).

We note that with respect to Swaby’s claim that he was denied constitutionally effective assistance of counsel because his trial attorney did not seek a forensics expert, the district court — before rejecting that claim for failure to establish the Strickland prejudice prong — held that Swaby had met his burden under the Strickland performance prong.

The district court held that “the [state] court’s finding that counsel acted reasonably in deciding not to investigate the forensics related to Clarke’s testimony was clearly unreasonable,” Swaby, 2014 WL 1347204, at *15, because “no deference is owed to strategic decisions made after a less than complete investigation,” id. (emphasis added).

We conclude that this ruling by the district court did not apply the Strickland principles as established by the United States Supreme Court. “There is a ‘strong presumption’ that counsel’s attention to certain issues to the exclusion of others reflects trial tactics rather than ‘sheer neglect.’ ” Richter, 562 U.S. at 109, 131 S.Ct. 770 (quoting Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per curiam)).

Although a failure to seek an expert would constitute objectively substandard performance if the attorney believed expert assistance was necessary but failed to hire an expert because he was inexcusably unaware of a law that permitted him to request appropriate funds to do so, see Hinton v.

Alabama, — U.S. —, 134 S.Ct. 1081, 1088-89, 188 L.Ed.2d 1 (2014), the failure to seek an expert does not satisfy the performance prong of Strickland where counsel chooses a strategy that does not require an expert. “Strickland ... permits counsel to ‘make a reasonable decision that makes particular investigations unnecessary.’ ” Richter, 562 U.S. at 106, 131 S.Ct. 770 (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052).

In such circumstances, “[e]ven if it had been apparent that expert ... testimony could support [a certain] defense, it would be reasonable to conclude that a competent attorney might elect not to use it.” Id. at 108, 131 S.Ct. 770; see also id. at 111, 131 S.Ct. 770 (“Strickland does not enact Newton’s third law for the presentation of evidence, requiring for every prosecution expert an equal and opposite expert from the defense.”). And certainly “[a]n attorney need not pursue an investigation that ... might be harmful to the defense.” Id. at 108, 131 S.Ct. 770.

Here, Swaby’s attorney had the discovery materials provided by the State, including the autopsy report with the ballistics evidence; and we see no claim by Swaby that his attorney failed to interview Wayne Clarke, the eyewitness to the shooting. The attorney’s strategy was to pursue a justification defense.

The State Supreme Court found that the currently-proposed expert witness would have undercut the defense strategy; the district court found that the forensic evidence was “perfectly consistent with Clarke’s testimony” and that the currently-proposed expert’s opinions “do not conflict with Clarke’s testimony.” Swaby, 2014 WL 1847204, at *16. In our view, fairminded jurists could conclude that a competent attorney could reasonably decline to seek expert testimony, anticipating that an expert’s view would more likely undercut than aid the planned justification,defense.

Thus, giving the state court’s rejection of this ineffective-assistance-of-counsel claim the doubly deferential consideration to which it is entitled, we cannot conclude that the court’s rejection on the basis of its evaluation of counsel’s performance was contrary to or an unreasonable application of the applicable principles established by the United States Supreme Court. We see no error in the ruling of the district court that Swaby failed to show the prejudice necessary to warrant habeas relief.

The State presented the testimony of an unbiased eyewitness that Swaby fired at Reynolds almost immediately after Reynolds left the club, contradicting Swa-by’s self-defense claim, and that Swaby continued firing repeatedly at Reynolds, even after Reynolds lay motionless on the ground. The testimony of other eyewitnesses corroborated that testimony in crucial respects. Forensic evidence confirmed that Reynolds was shot in the head five times, with two of those shots traveling in a downward direction, even though Swaby was several inches shorter than the victim.

Thus, we agree with the district court that Swaby failed to demonstrate that, even if trial counsel had called a forensic expert, there was a “reasonable probability that the trier of fact would have rejected the entirety [of the main prosecution witness’s testimony] as not credible,” Gersten v. Senkowski, 426 F.3d 588, 612 (2d Cir.2005).

Finally, even if we were to conclude that the state court erred in finding that there were no deficiencies in trial counsel’s performance, we could not conclude that the cumulative effect of any deficiencies, including the introduction of the underlying facts of a prior robbery committed by Swaby, “undermine[d] confidence in the outcome,” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Because Swaby has failed to adequately show that his trial counsel’s performance was constitutionally ineffective, he is not entitled to a writ of habeas corpus.

We have considered all of the arguments raised by Swaby on appeal and find them to be without merit. For the reasons stated above, the order of the district court denying relief is AFFIRMED.